Kearney v. Kearney

• Decision Date: 09 April 1999
• Docket Number: No. 23214-6-II,23214-6-II
• Citation: 974 P.2d 872,95 Wn.App. 405
• Court: Washington Court of Appeals
• Parties: Joseph D. KEARNEY, Appellant, v. Shelby KEARNEY, an individual, Defendant, Diana Lynn Kiesel, an individual; Law Office Of Diana Lynn Kiesel, Inc. P.S., a corporation; Naomi Huddleston, Dba/Rainier Associates, a business; John A. Miller, an individual; and Miller And Miller And Dart, P.S., Inc., a corporation, Respondents.

Page 405

95 Wn.App. 405

974 P.2d 872

Joseph D. KEARNEY, Appellant, v. Shelby KEARNEY, an individual, Defendant Diana Lynn Kiesel, an individual; Law Office Of Diana Lynn Kiesel, Inc. P.S., a corporation; Naomi Huddleston Dba/Rainier Associates, a business; John A. Miller, an individual; and Miller And Miller And Dart, P.S., Inc., a corporation, Respondents.

No. 23214-6-II.

Court of Appeals of Washington Division 2.

April 9, 1999.

Sean P. Wickens, Law Offices of Sverre O. Staurset P.s, Tacoma, for Appellant

Douglas Warren Vanscoy, Deputy Pros. Atty., Tacoma, Steven Wolfe Thompson, Seattle, Diana Lynn Kiesel, Tacoma, John Arthur Miller, Miller & Dart P.s, Inc., Fircrest, Aaron Dean, Lee, Smart, Cook, Martin & Patterson, Seattle, for Respondents.

HUNT, J.

Plaintiff Joseph Kearney appeals the trial court's CR 12(b)(6) dismissal of three defendants from his

Washington State privacy act lawsuit. Holding that the privacy act prohibits only unconsented recording or intercepting of private telephone conversations and their admission into evidence, we affirm dismissal of the defendants, who incorporated such conversations into reports to the court presiding over the Kearneys' custody dispute for use in determining their children's best interests.

FACTS

Joseph and Shelby Kearney ¹ filed for divorce on July 11, 1994; they had two minor children. The trial court appointed Diane Kiesel Guardian Ad Litem (GAL) to protect the children's interests throughout the dissolution proceedings.

During January 1995, Shelby recorded several telephone conversations between the children and Joseph; she gave copies of these tapes to GAL Kiesel. Based on her investigation and largely upon the taped conversations, Kiesel believed that Joseph was emotionally abusing the children by alienating them from their mother. Kiesel, therefore, recommended that Joseph's time with the children be supervised. She attached transcripts of the tapes to her report, which she filed with the superior court in September 1995.

Kiesel also gave copies of the tapes and transcripts to Naomi Huddlestone, the children's psychological evaluator for the dissolution proceeding. Huddlestone enlisted attorney John Miller ² to help prepare her declaration to be filed in the dissolution proceeding. In the declaration, Huddlestone stated that the tapes formed part of the basis for her opinion that Joseph Kearney's behavior was detrimental to the children; she included some parts of the tape transcripts in her declaration, which was filed in superior court in September 1995.

On January 23, 1996, Joseph filed a separate action, alleging that the telephone conversations had been recorded illegally and, as such, Shelby, Kiesel, Huddlestone, and Miller had violated his right to privacy under RCW 9.73.030 and .050. ³ He contended that: (1) Shelby had violated his privacy under RCW 9.73.030 by recording the conversation and giving copies to Kiesel, who in turn, filed them in superior court, in violation of RCW 9.73.050; (2) Kiesel had violated his privacy under RCW 9.73.050 by filing the transcripts with the court; (3) Huddlestone had violated his privacy under RCW 9.73.050 by filing the transcripts with the court; and (4) Miller, who should have known the tapes were illegally obtained, violated Joseph's privacy by assisting Huddlestone with her declaration referencing the tapes. Joseph alleged in his complaint that only Shelby had actually recorded the conversations; the other defendants had allegedly violated his rights by filing transcripts with the court.

Huddlestone and Kiesel filed motions to dismiss under CR 12(b)(6) for failure to state a claim upon which relief can be granted. They argued that RCW 9.73.030 prohibits only intercepting or recording private telephone conversations, not divulging such conversations; therefore, neither Huddlestone nor Kiesel violated the statute because they neither intercepted nor recorded but, rather, merely In April 1996, Miller filed a CR 12(b)(6) motion, asserting that: (1) he did not violate RCW 9.73.030 or .050; (2) he was representing Huddlestone, who had been dismissed from the suit; and (3) attorneys enjoy wide latitude and immunity from certain civil actions in the course of a judicial proceeding. The trial court entered orders dismissing Huddlestone, Kiesel, and Miller on April 23, 1996.

divulged the conversations. Huddlestone further argued that RCW 9.73.050 is an evidentiary rule that prohibits the court's admission into evidence of illegally recorded conversations; the statute does not prohibit filing such evidence with the court. Kiesel also argued that "filing" is not the same as "introducing into evidence" and that, as GAL, she enjoyed quasi-judicial immunity. The trial court granted the CR 12(b)(6) motions in March 1996. Joseph appealed, challenging the trial court's dismissal of Huddlestone and Kiesel.

Huddlestone moved for attorney fees under RCW 4.84.185, which allows the trial court to award fees when a party is required to defend against a frivolous lawsuit. She claimed that Joseph had filed the suit merely to harass and to delay an expert witness who had testified adversely to his interests in the dissolution action. Huddlestone noted that immediately after Joseph Kearney filed the privacy act suit, he moved to have her removed from the dissolution proceeding. Huddlestone argued that the tape transcripts were already part of the record when she filed her declaration and that although the "violation of the primary purpose" argument was meritless, she had incurred over $6,600 in attorney fees, had rescheduled clients, and suffered stress and anxiety. The trial court denied Huddlestone's attorney fees motion but awarded her $125 in statutory attorney fees.

On May 30, 1996, Joseph filed a motion for reconsideration of the court's dismissal of Huddlestone, Kiesel, and Miller from his privacy act lawsuit. The trial court denied this motion. A commissioner of this court then ruled that Joseph had no right of appeal because the trial court had On July 23, 1996, Joseph Kearney sought discretionary review. Our commissioner ruled that: (1) Joseph had not demonstrated obvious or probable error, that the statute was clear and did not prohibit divulging the information contained on the tapes or the tapes themselves; (2) RCW 9.73.050 merely prohibits introducing illegal recordings into evidence and not the offering of the tapes; and (3) RCW 9.73.060 ⁴ does not impose civil liability on those who violate the spirit and purpose of the act. We therefore denied review.

not issued final orders and had not indicated the disposition of all claims; thus, Joseph had to file for discretionary review if he wished review of the trial court's action.

Joseph next sought discretionary review in the Supreme Court. Their commissioner found our commissioner's analysis persuasive, ruled that the trial court's decision was plainly supported by the statutory language and legislative history, and also denied review.

Meanwhile, in the dissolution proceeding, the trial court had denied Joseph's motion to suppress the tape recordings. While we were considering whether to grant Joseph's second motion for discretionary review of the suppression ruling, Shelby and Joseph entered into an agreed parenting plan. On October 8, 1996, Joseph and Shelby Kearney settled their dissolution. ⁵ Our commissioner found that the parties' agreement rendered the tape recording issue moot because compromise settlements bar appeals of prior adverse decisions. On January 3, 1997, we again denied review of the trial court's denial of Joseph's suppression motion.

The Decree of Dissolution was filed on October 24, 1997. As part of that decree, Joseph's suit against Shelby for privacy violation was to be dismissed with prejudice; both parties acknowledged that each had recorded the other's conversations and both had been aware of the recordings.

On March 23, 1998, Joseph and Shelby filed: (1) a stipulation that the privacy act matter was fully settled and compromised; and (2) an order releasing all claims arising out of the privacy act suit. Joseph's complaint against Shelby was dismissed with prejudice. At this point Joseph's privacy act suit became final for purposes of direct appeal. ⁶

In April 1998, Joseph filed the instant appeal. Huddlestone filed a cross-appeal, alleging that the trial court erred by denying attorney fees she requested under RCW 4.84.185. All three respondents, Huddlestone, Kiesel, and Miller, request attorney fees under RAP 18.9; they claim that Joseph's appeal is frivolous and lacks merit.

DISCUSSION

I. STANDARD OF REVIEW

Granting a motion to dismiss under CR 12(b)(6) is a question of law, which we review de novo. Cutler v. Phillips Petroleum Co., 124 Wash.2d 749, 755, 881 P.2d 216 (1994). Motions under CR 12(b)(6) "should be granted 'sparingly and with care' and 'only in the unusual case in which the plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief.' " Tenore v. AT & T Wireless Services, 136 Wash.2d 322, 330, 962 P.2d 104 (1998); Cutler, 124 Wash.2d at 755, 881 P.2d 216; Hoffer v. State, 110 Wash.2d 415, 421, 755 P.2d 781 (1988), affirmed on rehearing 113 Wash.2d 148, 776 P.2d 963 (1989)(quoting 5A, C. WRIGHT & A. MILLER, FEDERAL PRACTICE § 1357, at 604 (1969)). We must determine whether Joseph can prove any set of facts, consistent with his complaint, that would entitle him to relief in superior court. Hoffer, 110 Wash.2d at 421, 755 P.2d 781.

II. CIVIL LIABILITY FOR DISSEMINATION OF PRIVATE CONVERSATIONS

A. RCW 9.73

Joseph argues that because the primary purpose behind RCW 9.73 is to prevent dissemination of illegally obtained private conversations, divulging such information gives rise to a cause of action, even though the statute creates liability only for recording or intercepting such information. Although Joseph's argument is intriguing, the...